Graham v Easington DC
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Lord Justice Tuckey,Lord Justice Jackson |
| Judgment Date | 02 December 2008 |
| Neutral Citation | [2008] EWCA Civ 1503 |
| Docket Number | Case No: C3/2008/1133 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 December 2008 |
[2008] EWCA Civ 1503
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
(Mr A J Trott)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Tuckey
Lord Justice Carnwath and
Lord Justice Jackson
Case No: C3/2008/1133
Mr H Smith (instructed by Crutes LLP) appeared on behalf of the Appellant
Mr T Dumont (instructed by MSP Legal Services) appeared on behalf of the Respondent.
(Draft for Approval)
This is an appeal against a decision of the Lands Tribunal given by Mr Trott FRICS. It concerns an application for the discharge of a restrictive covenant. The Lands Tribunal's jurisdiction derives from section 84 of the Law of Property Act 1925 subsection (1)(aa), which allows a company discharge upon the grounds that:
“in a case formed within subsection (1A below) the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified so impede such a user.
Subsection (1A) authorises:
“a discharge…of a restriction by reference to its impeding some reasonable user of the land in any case in which the Lands Tribunal is satisfied that the restriction, in impeding that user…
(a) does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them
…
and money will be an adequate compensation for the loss or disadvantage (if any) which any person will suffer from the discharge or the modification.”
There is also a ground (c), that the proposed discharge would not injure the person entitled to the benefit of the restriction, but it is common ground that that raises no separate issue in this case.
The appellant is entitled to the covenant as an adjoining landowner but is also the local planning authority. The site in respect of which the application discharge was made is part of an industrial estate on the edge of a settlement called Horden in the county of Durham. There is residential development to the west, and further to the west the town of Peterlee. Much of the estate is owned by the council but it has sold off parts for various industrial or warehouse uses. The Member gave a full description of the estate and the position of the site within it in paragraphs 8 onwards of his decision, and I do not need to repeat that.
The covenant is in the following terms:
“The Transferee hereby covenants with the Transferor on his own and his successors in title:
(i) not to use the property for any purpose other than as a coach depot with an associated bungalow for residential use. Occupation of the bungalow must be linked with the use of the land as a coach depot and the bungalow cannot be sold or leased except from the depot.”
That covenant was imposed on the transfer of the freehold by the council to a Mr Pygall in July 2000. Mr Pygall then sold the land to a Mr Graham. The background of all that is not particularly material for the present purposes because the important point for our purposes is that in 2004 Mr Graham decided to apply for outline permission for residential development for some 30 houses on the site. That proposal came before the council as planning authority in April 2005 when it granted planning permission. Mr Graham then applied to the Lands Tribunal for release of the covenant to enable him to carry out that development, and that is the proposal which came before the Member.
Not surprisingly, at the heart of the decision of the issues before the Member, as before use, was whether the council could justify its apparent change of heart: from having granted permission, in its capacity as planning authority, to its later refusal of the discharge of the covenant under the Law of Property Act. Although that seems a relatively narrow issue, the case was hard fought before the tribunal and took some three days of evidence, the council calling no less than six witnesses.
The Member's decision sets out very fully the arguments of the parties and the evidence. He also explained the relevant law. Although we have been referred to a number of authorities, it does not seem to me that there is any real dispute as to the applicable principles or that there is any serious criticisms of the Member's summary of them. At paragraph 97 of his decision Mr Trott noted, correctly, that the expression “practical benefits” is to be construed widely and is not limited to a restriction to the benefit on protection of land. He refers to Gilbert v Spoor [1983] Ch 2It was also common ground that the fact that planning permission had been granted by the very same body which was now objecting to the application was not determinative. The Member referred at paragraph 100 to the words of Fox LJ in Re: Martins' Application [1988] 57 P&CR 119 at 124–125. That makes clear that the grant of planning permission is a circumstance which the tribunal can and should take into account but it is still able to make up its own mind. It is fair to note that in Re: Martins' the planning permission had been granted not by the same authority but by the Secretary of State on appeal against refusal of planning permission by the authority.
However, the same approach has been applied in circumstances where it is the same authority which has approved permission. An illustration of that is Re: Jones & White & Co's Application [1989] 58 P&CR 512, a decision of the tribunal presided over by Mr Williams QC. There it was held that the authority was not bound by its own grant of planning permission but was able to look at the matter again. So, as I say, I do not see there would be any real point of law in this case.
I should refer now to the way the case was put and Mr Trott's conclusions. The council's approach was really twofold: firstly that it was entitled as landowner to take a rather broader approach than it had to do as planning authority; and secondly that, in any event, circumstances had changed since the planning decision: specifically, in respect of the balance of the industrial land versus housing land.
To assess those submissions it is necessary first to look at the grounds on which the planning permission was granted. The best evidence of this is in the planning minutes of the council, which are in the bundle at 99 and 101. This was a meeting on 12 October 2004.
The planning officer had recommended refusal upon the grounds that, because of the adjacent existing industrial estate, the proposal residential use was considered to be inappropriate land usage, and also contrary to the provisions of the local plan. The minutes record the main issue was:
“the surrounding industrial land uses and proximity to industrial and commercial premises. Although the application proposed a landscaped buffer adjacent to the industrial estate, it was considered that there was a likelihood of noise and fumes affecting the residents of the proposed development.”
So the planning officers were opposed to the proposal.
The committee then heard from the applicant's representatives. They suggested that any concerns about effect on adjoining development should be seen in the context of the industrial site as it already was, not what might happen in the future. They also suggested this site would provide local affordable housing which would enhance and regenerate the area and overcome the anti-social behaviour problems which were experienced on the site. There was also apparently no objections have been received from the parish council or the residents. The planning officer responded to that but the Members decided to support the application. The minutes say this:
“Members considered that on balance whilst taking into account the Planning Officers concerns about the adjacent industrial site, the land at present was derelict and unsightly and a development would served to enhance the area and provide much needed housing in Horden.”
I note in passing that that difference of view between the officers and the committee turned almost entirely on local considerations (on the one hand impact of the industrial estate, on the other the need to clear up a derelict site) and the prospect of some local housing in Horden.
Against that background one comes to the evidence as presented to Mr Trott. He summarised the council's case on this and to a large...
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